tv Today in Washington CSPAN December 27, 2012 2:00am-6:00am EST
candidates. [laughter] >> you spend lot of time following the stuff. >> only president obama who had a father -- it was an extraordinary openness actually. >> you know, i think we talk about it a lot. you know, i liked it when i was a kid. you didn't talk about it a lot. you lived your life. that to me -- we talk a lot about this person is that, this person is this. and then we pretended -- we i liked it when people didn't care. you -- i was catholic. you talk about a minority within a minority, within a minority.
i was a black catholic in savannah, georgia. [laughter] now that is a what is an insular . >> discreet. >> insular minority. so but nobody bothered us. i was the only black kid in my seminary 1965. '64 there was another young man. i was there by myself for two years in savannah. nobody bothered me. i hear people say these things about their tolerance. there are identifying who is what a lot more. the -- i kind of like the idea that when you started, here you and i, neither one of us is caucasian. nobody is pointing it out. we pointed it out and said you are indian dissent. i don't know what people say. people say horrible things.
i'm not black, so i'm a little doubtful i should say i'm black, you know. [laughter] but, i mean, here we are. nobody one is bringing it up. i think what you should be more concerned about is where we are we are the ivy leagues nap seems to be more relevant. but even with that, even with can nitpick all of it. these are good people. these are people who i go back to what i said, they are continuing what was started 200-years ago the great debate. they are good people. i mean, i sit next to justice ginsburg, how often we agree? >> [laughter] a lot actually. >>. >> we do? [laughter] yeah -- most of many cases are anonymous. >> the anonymous cases -- yes.
[laughter] and the -- i agree with the nomtion cases. [laughter] i like that. that is a screwed move. there is one category of cases we agree. what are they? the anonymous cases. [laughter] but she is a good person. she is a fabulous judge. i like sitting next to her. you know, we are friends. look -- i think that what is you want. you want people who still are able to work together and get it right, but don't change their mind because they are there. just because it's sort of the fad. you want them to think. same way you had at the convention, we the people. the ratification debates. i would -- i want to spend time going back because that was a time -- you talked about people
actually saying what they believe. people fighting about it, people caring about it. people are writing articles about it. federalist papers, people traveling, people having meetings at homes and in their churches, you can't do that, i guess. but you having people meeting in their -- in town halls. all of the time they are debating. people who actually read the constitution, this is fascinatings. that is something else too. do they actually read it? they tread back then. and they were not as universal available. there was no internet to read it on. but they somehow printed it and read it and talked about it. and the people who couldn't read had it read to them. and formed opinions. so i think, yes, it was a debate
about this country, the formation, how it would evolve and what direction. i think it continues. it's the same debate. so you can talk about the commerce club, you can talk about equal protection, due process, substantiative due process, the first amendment, it's all the same debate. and it is the appropriate debates. it's one that i would wish would sort of try to reach the same eye level that we saw in philadelphia. and we're going see at other points in the ratification process. who writes like -- the sort of defenses and arguments you see in the federalists today? who writes them? who sits at home and drafts arguments we see, letters, you see -- you never [inaudible]
these were people who were engaged and knew the constitution and these were not scholars. these were not people who had appropriated to themselves license, the soul license to interpret or talk about the great document. these were foreigners. these were business people. some of them who have formal education, some who did not. they cared about the country. i think you need to have that today. i think that, you know, i go back to your book, you talk about the written and unwritten constitution. the unwritten constitution is that sort of trying to bring to apply it to current events and problems and cases, and developments and the debate continues on each one of those. and that's why you see the court
go different ways. that's why the arguments -- [inaudible] that's why the scholarship is so important. one thing i like about the tone of the book. it's so positive. it's refreshing. you know, it's not i have all the answers. here is some answers. let's talk about it. it isn't up here. i told my clerks, when we work on opinions, you have to explain -- take your parents, they rim gaunteds, they are -- immigrants they are bright people. i don't think they are doctors or lawyers. it's their constitution too. and we should explain it and get in a they interpreted in a way to make it s&l to them. -- assessable to them. that's what i think you're trying to do with your book. to make it assessable to everyone. >> here is one concluding note. we've been talking a lot about the past last 225 years, sort of
arc of every greater inclusion. we didn't talk as much as we might have as women suffrage. that is a huge, of course, revolutionary moment of additional inclusion. the amendment that prohibition aside, generally tend to expand liberty and equality. which is pretty striking that in general the amendments do that and don't take us back. now here is a thought experiment. one, understanding of an unwritten constitution might be the constitution is still to be written. the unfinished constitution. they're not done. history isn't over. what amendments are imaginable over the next 225 years? if we look back . >> i hope you don't expect me to hang around. [laughter] >> just thinking about if we --
because you and i spent a lot of our time thinking about 225 years ago, 150 years ago, 75 years ago. if we turn that time around, and try to think forward 75 years from now -- 225 years from now. any thoughts at all. these issues aren't going to come up before the court immediately. on so, you know, just thoughts on the democratic project in america or the world, you know, going forward. >> you know, i'm not that creative or that -- [inaudible] you know, i do think. i wonder when people look back, as we're looking back now, let's say we added something. will they look at what we have written and understand it? we actually thought about things or trying to score a point
here? i would hope that we can say that we have made, at least they can say we have a made a positive contribution. as positive as you and i think of those at the convention, those who participated in the debate. they added something. you know, when we do opinions, i don't like to get to the back and forth with my colleagues and quibble. i like at the end of it to say this is what i think we should be looking at or approach we should be taking. that doesn't mean everybody should agree with me or they should change their minds. i just think that what you're trying to do is think it through, and tell them exactly what you think without personal attacks.
there is enough of that. but just to add something. i think that we are obligationed, you and me, if we talk about the great document, we are obligated to try to improve it. >> yes. >> we are obligated to disagree. but in a way that is constructive. in a way that adds something. in a way that is worthy of the constitution. we think it's a document up here. and i think we are obligated -- you have kids. you teach them, they talk about things in a certain way and to each other in a certain way. to their parents in a certain way. to your parents in a respectful way. it's a great document. and, you know, i don't deny the flaws. i really don't. i have lived the flaws. i have lived the contradictions. i say it inspite of that. that it is to us to do the -- it's you and . >> absolutely.
that's how we . >> but it's you and i. we're talking about it. i have a job. i start again this month to go back to that job, that we're called to do. you and i have an obligations to do it in a positive way. to add something. what i don't want, is someone to say, well, you know, he was there, but he was cynical, negative, and didn't think it through. remember notice i didn't say i agreed with them. i couldn't careless. that's not my point. the point is do you think it through and communicate in a way that adds to the development that you're talking about? think about that. think about . >> first justice john marshall. the great dissent. ferguson. >> do we probe on the majority
opinion on the dissent? it's the dissent that won the day. sixty years later, it was the dissent. so you write it in a way that contributes. did you think when he was alone in dissent. >> sole dissenter. >> we are the soul . >> which is kind of interesting. but these little tidbits as i think sometimes as my wife says i get too caught up in the little things, we read the cases other and over and over and over again. the eloquence of it. you know, to think about what he said. we have our biases, people -- and -- but this document, this is what he said, this document knows no -- [inaudible] [laughter] this document well.
he didn't quite said that. he said it knows no color. and i truly believe he added something. at that time, he was alone. people thought they could deal with us in a constitutional way based on our skin color. i have lived that. that is a contra contradiction what do you think we held on to in the words from justice harlem. it's my understanding that said was what justice thurgood marshall what he was disupon dent and thought he was having great difficulties in doing the right thing across the country. he would read that dissent, we both read it at different points. he a great man and me a little kid. and asked a giant and a kid merely trying to get out. and you now sit in the seat that thurgood marshall had. >> i sit in a chair.
i think he occupied his own seat. [laughter] i think the, you know, i had spent time with him, i would like to say a word. people do a lot of talking on behalf of other people. i sat with him in the meeting when i first got court . >> thurgood marshall. >> courtesy visit that was supposed to last ten minutes and lasted two and a half hours. and he regaled me with stories, and i said to him, i wish that if i had the courage and the age that i could have traveled with him across the south. but i doubt i would have had the courage that he had to do that. and he looked at me, very quietly said i had do in my time what i had to do. you have to do in your time what you have to do. that was all the guidance. and perhaps when we talk about the great document, it sums up
the those at the convention, they had to do in their time they had to do. they did it. and we have to do in our time what we have to do. will we do it? >> so with that, let me add one additional thought. and maybe bring our proceedings to a close. this conversation i think has been in the spirit you're calling for on our sponsoring constitutions, the federalists society and the constitution accountability center. it doesn't always agree on everything. i think they both agree on the idea of a serious conversation centered on this document. since i mentioned amendments, and i don't want to make too many predictions. ly say most of the amendments as
a prablght call -- practical matter have the support of both parties. it's hard to get two-thirds, two-thirds, three quarters without both parties being on board. the great amendment of the 1960s. the great iconic statute of the 1960 civil rights act of '64, the voting rights act of '65. fair housing act of '86. republicans and democrats in the spirit that you are calling for, and i have one other thought since we're talking about our sponsoring institutions for this extraordinary conversation, that's the national archive -- i think that the framers of the constitution who were amending their regime, studied what had gone they studied the state constitution. saw which ones worked and didn't. massachusetts put the constitution to a vote let's put our constitution to a vote.
most of the constitutions have three banch branches of government. let's go with that. most have vie -- an independent executive works well for massachusetts and new york. let's build on that. many of the bill of rights. george mason he gives u.s. virginia bill of rights. that's model for the federal bill of rights. abolition of slavery occurred in several states. and we have to study, you know, and make amendments. what has gone before us. we have the duty to the future, i think we danger it best when we actually are understanding or respectful of the past. that's part of the national archives is about. if i could just, on a personal note, tell you the story why i'm here. and justice thomas' presence needs no explanation. he's justice thomas. what the heck am i doing here? well, when i was 11 years old, i
came to the national archives, and i got this document that is big, big verse of the emancipation proclamation, and it was edition of the emancipation proclamation. you can take a look at the 100th anniversary of september 1962 and the archives released that a special edition for kids like me. and i got my picture of maybe lincoln. i'm a lincoln man too. [laughter] you don't throw anything out. [laughter] >> i don't. and i came here. that is what made me not cynical. coming at the very young age to a place like this. being exposed to mr. lincoln and what he did for the union being
exposed to the decoration of independence and the constitution. i'm here today because of that, honestly. i would live -- like to give special thanks to the national archives. i want to thank you for coming to this extraordinary conversation. i want to encourage those on the television add yen to come to the place, if you can. bring your kids. bring your grand kids and your grand nephew. bring the next generation here, and if you can't come here physically, experience the national archives online. you mentioned the internet. because i think,s if up to us, the living, we can't just think about the future without thinking very deeply about the past. i think this is a place that will help us do that thinking, and so i ask all of you to join me in thanking justice thomas and thanking the archives. [applause] >> thank you.
>> hello, everyone. thank you so much for being here. in my case this happens to be true. i am not myself from philadelphia, but my dad, he was. [applause] all right, the pandering has just begun. don't worry. curtis institute that is where he went and he went to temple as well. he said the streets were paved with opportunity here, and i have enjoyed my visits ever since. i'm really happy to be talking about "the oath." it only came out two days ago. so far so good.
no, it is exciting. we work on these books than you think, wow, people are actually reading them. it is exciting. let me start by asking first question on her mind, which is who is your favorite justice? [laughter] >> is madeleine at canaan. >> it's not elena kagan. for so long, my favorite justice was david souter. because he was so delightfully odd. he didn't have a cell phone or computer. he didn't have an answering machine on his phone. he was late for william rehnquist's funeral because they couldn't leave a message and find out where he was. he didn't like and doesn't like electric lights. he moved his chair around his office over the course of the
day to catch the sunlight. that's a true story. but the great thing about justice souter was that he sort of got the joke about being a supreme court justice. he understood it was important, but it wasn't all about him. i will just give you one example of that. for reasons that remain obscure, david souter and stephen breyer are frequently mistaken for each other. if you know what they look like they don't look anything alike. but people only have a vague sense and one time not too long ago, justice souter was driving from washington to his home in new hampshire. he stopped at a restaurant to get something to eat. and the couple came up to him and the guy said, you are on the supreme court, right? and he said, you are stephen breyer, and he didn't want to be embarrassed in front of his wife, so we said yes, i am stephen breyer, i am stephen breyer, and then they chatted for a little while and the guy said, what is the best thing
about being on the supreme court? and he thought for a minute and he said, i would have to save take the privilege of serving with david souter. [laughter] how could you not love a guy like that. so i'm taking nominations for my favorite justice. okay, let's talk about the current supreme court by the numbers. well, there are six men and three women. first time in history there are three women in court. [applause] there are six catholics and three jews. no applause for the catholics and jews here? [applause] no partisans for the first time in history. there are representatives of four new york city boroughs on this record. tragically, staten island is
underrepresented on the supreme court. [laughter] but you never know when it could be vacancies and we could address that gap. there are six products of harvard law school and free products of your law school on the supreme court. they're currently there are currently no other law schools in the united states. [laughter] besides those two. it is a bizarre and unfortunate fact, i think, actually. but those are what i hope or interesting facts about the supreme court erred greatly, i don't think they are very important. here is an important thing. if there is a take away here, have gotten to the point early that there were five republicans and four democrats, and that really tells you much of what you need to know.
it is true that the justices are supposed to look like and supposed to give the perception that they are all pretty much the same. but just as on the other side of the united states congress is deeply divided according to party, so is the united states in court. and this is a moment of real partisan division of the supreme court. and that is exemplified in case after case. why this moment is so important, i think, you need to go back in history two different. a time when the supreme court was unified. in the 60s it was not as divided as it is now. there were several liberals in
the late days of the warren court. and there was a real liberal agenda. every saturday morning, chief justice warren and his friend, william brennan would be together and they would say what we want to take her case is? they had case is about cases and the law. in 1964, [inaudible] justice william douglas had griswold versus connecticut, so that married couples could not be denied the right to buy birth control. 1956, chief justice warren volution eyes criminal procedure and perhaps more importantly, changing television dramas forever. [laughter]
1967, perhaps the best named case in supreme court history. what was the case? state could no longer bear him racial intermarriage. think about that in 1967. there are people in this room who were alive in 1967. [laughter] it was still illegal in a lot of states and when barack obama's parents got married in kenya, i'm sorry, i mean in -- [laughter] >> at such a cheap joke and i apologize. but everybody knows mitt romney is having a rough time as a presidential candidate but a sentence that i have not heard uttered anywhere is the only
donald trump had been the nominee. because he built this idea that barack obama was built in kenya other than the united states. but that campaign did not take off exactly. mitt romney is there for better or worse. when barack obama's parents got married in 1960, and it wasn't kenya, i'm sorry, it was in hawaii, they got married in hawaii and there were people in prison in this country for racial intermarriage. so just give you an idea of how much the country has changed in a good way. but right after richard nixon became president, for vacancies appeared on the supreme court. jimmy carter is the only president in american history
but to the full term without a single they consider greater richard nixon was only president for five years and he had to leave early, remember? [applause] but he got four appointments to the supreme court. they were replaced by richard nixon with chief justice warren burger. blackmun, and william rehnquist. as a think about that list, has a very important part of the oath. but it is american politics over the past generation. and that is the evolution of the republican party. it is the most important story in american politics. it is the most important story in the supreme court.
because moderate republicans dominated the supreme court moderate republicans are gone and the supreme court and the united states congress, our i inspector is fighting for his life now, i had the privilege of covering senator specter who is a great character. often during his tenure in the senate, he left the republican party literally. if you look at nixon's appointments of the supreme court, in the 1970s, a lot of people thought that the court would woo weight to the right because nixon had these appointments. the 70s was almost as liberal as the 60s. the big cases had to do with nixon. they ended the death penalty in
1972. they let back in 1976. still, the most controversial decision of the mall, 1973, roe versus wade, the decision but that it could no longer ban abortions. it was a seven to to opinion. william douglas sat down, resident for, nominating john paul stevens to replace him in his confirmation. he was not part of the political dialogue in the way loder became.
ronald reagan brought with him to washington a very underrated figure in recent american history. someone who i don't think is seen as an important person. and that is edward meese. he was first an adviser and attorney general. he said there has been a liberal agenda. above all, roe versus wade banned abortion. a big part of the reagan revolution. there was a lawyer who wanted work on behalf of that agenda.
so reagan's people went all the way to the intermediate appeals court in arizona. not even the arizona supreme court to find a remarkable figure who buys and a sandra day o'connor. sandra day o'connor is not a social conservative for a religious conservative or anything like the kind of conservatives that dominate the republican party now and that was fine with ronald reagan. he didn't care. it wasn't his agenda either and he's very proud of this nomination of o'connor. 1996, chief justice burger stepped down. reagan elevated rehnquist as chief justice, named antonin scully are to that seat. no question about it.
hissing, booing. no question about it. conservatives. the following year, a really key turning point in history the supreme court. 1987, lewis powell said down. lewis powell was at that point the swing justice. the justices don't like when the news media like that term, but it's been useful terms because the court has been so evenly divided for so long. the sea was very important and in 1887, he remembered a president reagan nominated? robert work. something very important had happened between the nominations of rehnquist and scully at 86 and nomination of work and 87. in the midterm elections, the democratic retaking control of the united states senate. so the chairman of the judiciary committee was no longer strom
thurmond, but was instead a young senator from delaware named joseph haydn. eitan engineered bork's record and to his credit, perhaps to his regret engaged senators and discussions of how he felt about the issues and it became clear he got the civil rights act was a monstrous thing an individual choice beauty that there is no such thing as a right to privacy and the senate by a vote of 582942 site to conservatives than he was voted down an ronald reagan nominated instead to anthony kennedy, who certainly no liberal, but no robert work either and he has had a long and distinguished career as now the swing vote on the court. and that's sad, that really set
the rehnquist years at the court, which i've read about in my last book. when i started looking at this court any serious way way as a writer, i was inspired by your book familiar to many of you called the criterion by scott armstrong and bob woodward, really a great book on this real first behind the scenes book. the theme of the book with all the justices, regardless of politics couldn't stand warren burger. they thought he was a pompous. that sort of contentiousness is in the rule more than the exception in the history of the supreme court. i don't know how many of you have had the misfortune to hear that justice is served from 1914 to 1941 name james mcreynolds, who such an appalling anti-semite ditties stick it a family whenever justice cardozo
would speak. a cantankerous one summer had a car accident and drove his car off a cliff in the first question of who inhabit the corba service felix frankfurter at the time they hated each other so much they thought the frankfurter might've driven him off. [laughter] i was hoping a teacher and a list that i would find this cd center of the rehnquist court and the history. to my great disappointments of the journalists, but so much satisfaction as a citizen, i went rehnquist is very popular among his colleagues. he basically created a rule that good fences make good neighbors. he didn't harass anybody. they left each other alone, they voted and rehnquist didn't force anyone to vote anyway they didn't want to vote him out with it. another thing rehnquist did
emanate detainees, the court was deciding about 150 cases a year. but 10 rehnquist that they were deciding about 80 cases a year. did you not. 80 cases divided by nine justices divided by four law clerks to peace. no wonder they live so long. it's a pretty cushy job in the supreme court. this just not that many cases. in the 80s the case but had gotten so big there's actually a proposal for the court to create a new super intermediate appeals court between the circuit court and supreme court. and it went to the white house counsel's office for evaluation. the white house counsel is binding on member of his staff named john roberts and this is an excerpt from the memo that roberts wrote.
he sighed, while some of the tales about emanating from the court are enough to bring tears to the eyes, it is true that only supreme court justices and schoolchildren are expected to and do take the entire summer off. the chief justice does that feel anyway anymore. he is much more in favor of taking the summer off. especially this summer. he wanted the summer off and it is true that a new chief justice roberts the court remains a congenial place in d.c. that the court is a congenial place, you need only go watch a supreme court argument. i'm sure to distinguish group that you come in many of you that. if you have not come i encourage you. it's the best free show of washing 10. it's very entertaining, very eliminating and there is the course one very well known fact
about supreme court oral arguments. and that is very justices who are very engaged in very prepared and ask lots of hard questions. and we are now in year seven of clarence thomas' reign of silence. february 22nd, 2006. this is a straight year that was the last time he asked the question. but those of us who go to arguments regularly, does not have many up there. our press section next to justin certainly are and we always think, will this be the day? [laughter] and it ever is. it just never is. but this is why should go is because you see that justice thomas is not silent.
he passes most of his colleagues. the top, they laugh, tell jokes. he is not an unpopular or influential member of the supreme court. it's actually very significant for some the supreme court. he just chooses for his own bizarre reasons not ever to ask any questions. just speaking briefly about the rehnquist court, i think it's useful to think about the rehnquist court in two parts. 1996 to 2,002,000 to 2005. the dividing point in history the court in many respects in the history of the country is the court's decision in bush v. gore. that justice scalia does a lot of public speaking and he's often asked the kind of hostile question about bush v. gore. and he always says the same thing. get over it.
[laughter] well, speaking just for myself, i am so not over it. [applause] i am really not over it. before i wrote to nine, i wrote a book called too close to call about the time florida, which had a peak part about bush v. gore. one thing i try to do in reporting that the this interview al gore. obviously you can tell that story. you want to interview al gore. he wouldn't talk to me. i shred everything. just by coincidence, i met al gore while i was working on the ninth. i said to him, mr. vice president -- she had read too close to call and i said, i am writing another book where bush v. gore is at the center of it.
i said i think i'm the biggest bush v. gore junkie in the world. and he said you may be second. [laughter] i think he's got a point. i have to agree. but i don't want to spend too much time on bush v. gore today. but bush v. gore had they not predict it will come at least for me, since i'm not good at predictions as you may know. get to that later. the legacy of the supreme court. as you know, i think you will note bush won that case. but the court turned 2000 to 2005 move to the left. the court got her liberal. save nine justices. think about the cases. end of the death penalty for the mentally, and the death penalty
for juvenile offenders. the taxes that people could no longer be thrown in prison for having consensual that. they saved affirmative-action in the famous case from michigan law school. case after case reject the bush administration position on guantánamo bay and treatment of the detainees there. so why did the court of last? well, the court move left because sandra day o'connor grew more and more alienated from the modern republican party. she didn't like john ashcroft. she did not warrant here has been connect it. she didn't like the way the war in iraq was being conducted and above all, she was alienated by something that doesn't get talked about a lot now, but the one very large in the history of our country. not just the supreme court. and this terry schiavo case. the terry schiavo case had a big
impact on justice o'connor summoned the police and judicial independence, the summit dealing, although many people didn't know at the time come with dissent ever has been alzheimer's disease. the idea of medical decision-making for a critically alpert was not just an abstraction for justice o'connor. in 2005 she left the court to take care of her husband and she was replaced ultimately by samuel alito and chief justice rehnquist was replaced by chief justice roberts. in the court now reflects the modern republican party. it is worth pausing to think about the last three justices. sandra day o'connor coming david souter and john paul stevens. through more different human beings who will never meet.
sandra day o'connor coming this fall, charismatic, outgoing politician from arizona. david souter, shy, reclusive busser from the other side of the country in new hampshire. john paul stevens, where the antitrust lawyer from chicago. what do they have in common? they were all moderate republicans. they were all moderate republicans who left the court deeply and totally alienated from the modern republican party. and "the oath" can i tell a story justice o'connor and justice souter having a conversation in the hallway at the supreme court and o'connor, boiling the frustration about how, as she said, why is it that our party is destroying the country? why are we spending money we don't have? why are we engaged in this war
in iraq with no and? barry goldwater she said never gave a who you slept with him that was the party now does give a where you change with. today's stephen breyer said after the court decided the seattle and louisville anti-segregation cases overturned those. he said it is not a women want this so if you have quickly so much. and that was even before citizens united, which i think is the defining case so far of the roberts court. but remember, the conservatives of the 60s, 70s, moderate republicans. the core idea of conservatism at the supreme court was judicial
restraint. the idea that courts should, if at all possible, do for to the elected branches of government. should not overturn laws lately. the liberals were always trying to overturn laws and he was potter stewart lewis powell and sandra day o'connor preaching judicial constraint. citizens united is the case were just a few years earlier, george w. bush had signed the mccain-feingold law. in two years earlier -- within two, four years earlier the supreme court had affirmed the constitutionality of the mccain-feingold law. but in a story i tell at greater length in the "the oath," the conservative majority converted a relatively minor dispute over an obscure film put up a nonprofit corporation into a
complete rewriting of our campaign finance laws, based on the dual metaphors are corporations are people and money is speech. those two ideas are at the heart of citizens united and they are the story and that decision is very much the story of the 2012 presidential and perhaps even more importantly, lower ballot races. that brings us to the health care case. now, there were some so-called experts and pundits to watch the oral argument that case and said, is quite clear that what is going to be overturned because of the questions. in my defense --
[laughter] i would just like to say, whatever, okay? it was basic cable, all rights? you don't pay extra for cnn. [laughter] it is a somewhat more informed decision and that i thought the low would be overturned based on the oral arguments in part because of my experience, this is not a corporately plate a lot of devils advocate. they use oral argument, their questions to make their case to their colleagues. and during most of the argument that the five conservatives are very much leaning against the obama administration on the key arguments in the case, was just
as the commerce clause of article i although congress to pass the individual mandate, which says the individuals have good health insurance. as i sat in court on june 28th in her chief justice roberts announce a decision in the case, i learned the answer to that question, which was no, it doesn't. the commerce clause does not allow the court, the congress to invoke an individual mandate. but then in a decision that stunned many people, but no one more than me, john roberts reached for a subsidiary argument that had only been pending, only mentioned in passing that the supreme court and lower courts that the individual mandate is a permissible use of the taxing power of congress and not the commerce clause and thus the law could be upheld. a question of finance dissipate
by. there were three main reasons. one is i think you have to take his opinion at face value. he simply thought of this legitimate use of the taxing power. i think the second and third are more important. the second and third -- the second is that john roberts sought health care, as many people saw help care, is the third in a trilogy of cases concerning what bush v. gore in 2000 from the citizens united in 2010, upon the care in 2012. and in those first two cases come to you at five republican justices -- and dreams of democrats and was seen too many is a very partisan case. as they sat down to vote on health care, it looks like the same thing was going to have them. the five republican nominees were going to trash a democratic
dream. roberts recoiled at that idea. roberts is a very keen sense of politics in the larger sense and he knew and cared deeply that the supreme court not be regarded as simply another branch of congress, where democrats and republicans pay. he wanted the court to be seen if at all possible i somewhat elevated from that sort of discourse. but as a third reason, worth remembering the republican conservative agenda for the supreme court that i talked about early on. expand executive power and preferences. above all, reverse roe v. wade. the commerce clause was not part of that agenda. again, any story i tell and "the
oath," the idea that an individual mandate was unconstitutional was invented out of thin air essentially fixed months before the law was passed. the individual mandate had been pioneered by the conservative heritage foundation and the late 80s. decades it had been discussed and no one had ever suggested it was unconstitutional. you might think. someone might've noticed this really unconstitutional. it is an example i think and i believe robert staines of the kind of political frenzy. a desire of the part of republicans to defeat the saw at any cost, any price and roberts said this is a diversion from what we need to do as conservatives. roberts did not suddenly last year discoveries and are moderate. he is not a moderate.
he will not suddenly start siding with four liberals. but in this case, he preserved his plays and he preserved the courts place as a relatively neutral arbiter and expanded his own power and reputation and enormous lake, which he will use sooner rather than later to advance the conservative goals that he cares so much about. at least that's what i think. and with that, why don't we take some questions? [applause] >> thank you is so vitally start we start with there. wait for the microphone. hold the microphone close to your mouth. >> which you distinguish between justices appointed by republican and democratic presidents are supposed to what you term
republican and democratic justices? >> i think particularly today, that is largely a distinction without a difference. the supreme court -- nobody is confused about the importance of the supreme court and no one is confused about the importance of ideology at the supreme court. the difference between bruce bader gin spurred an antonin scalia is not the one is smart and one is down. not the one is a good player and the other bad. not when it sat on the other unethical. they are both intelligent employers and ethical. they just see the constitution in different ways and that is inevitable. you cannot look at questions like does the constitution protect a woman's right to an abortion? the race be used in college admission? as there is much political
questions as they are legal questions and do justice to get from a republican president to be different from the justice to get is a democratic president and people should vote accordingly. >> one, two, three, four back. >> why she decided. it's too great a responsibility for me. >> my question as article iii closest room cores supreme and his supremacy is very fragile. i'm sure you've read justice jackson's book for judicial supremacy. do you think that john roberts is mindful of this place in his three not wanting to be the key factor in destroying the so-called supremacy of the supreme court of the united
states? >> you know, i do think the larger point refer to his roberts cares about his legacy in place of the court and american life in government is very important. i am highly confident in the durability of supremacy at this point. look, if this can survive bush v. gore, it can survive anything. talk to write transparently critical decision that damaged the credibility of the court. but they are just as powerful the next day as they were that day and i don't think if roberts had voted with his conservative colleagues in the obamacare case that the corporative suddenly last judicial supremacy. it would apply some this reputation and roberts cares about that. but john marshall decided
marbury versus madison. the superiority of a right to declare laws unconstitutional has been unchallenged since that point out think you that decisions can change that. the mac do you think if obama is reelected that ruth bader ginsburg will set down? are there any other justices you think might consider withdrawing from the supreme court? >> the answer is the resignation decisions are very political in the sense that justices decide to leave when a president to the lake in in a position to appoint them. this ginsburg is a great fan of president obama and i do think she will be publicly and obama's third year. she's 79 years old.
she's often fishiness is served until 82 because that's the way brandeis, or i ago served until. that's not funny. that's true. and some people ask, why did she quit earlier to make sure obama has a seat? you know what, she's a human being and she's a widow and she loves what she does and she's good at it and she's got to bring some hope to do it. she's particularly enamored of her new colleague, elana kagan and her choices to be senior liberal the supreme court is is the price up at the watergate. what would you do? so i think she's going to stay. if obama is reelect to, and it's looking that way, i was not hinder him. just making another one of my ex
thought predictions. i don't think any of the conservatives will leave voluntarily. but it's starting to be a pretty old quarter. justice kennedy and scalia are both 70 sixer sold. do the math. you don't always get a choice when you leave. i think if romney wins, ginsburg will try to hold off for the next four years. i think if obama wins, kennedy and scully will try to hold on, but you never know what will help them. >> is in or close of she's justice robert, can you explain when he replied the job of the justice pushes to call and
strikes is supposed to change the rules. >> well, he is one to say that that is the most quoted saying he is ever so. 80% of the time critically about him, issues thrown back at him. we all come to, supreme court justices included, perceive ourselves in certain ways and like to perceive ourselves in certain ways. i don't think john roberts gets up in the morning and says any judicial act this. i'm someone who's trying to rewrite laws of the united states, to restore them to how i think they had to be. parenthetically, clarence thomas does speak up and say that. and i don't mean that in a critical way. clarence thomas has a different attitude towards precedent.
justice scalia has said this. he says thomas doesn't really believe in the rule of precedent. he thinks that decisions are appropriate to overturn them all and that's a very different attitude than any of the other justices. roberts i think has an image of himself as someone who is more respectful of the president than he actually is and i don't think he was sitting there line. i'm going to call myself an umpire, but in the of baseball. but exacted a lot more like the commissioner of baseball. >> what are some of the reasons you see us explain the rash of and touristy extremes at the supreme court level of congress and even the country. >> that is a really great question and sort of as much
political science as anything else. anything could big factor. i don't want to sound to nerdly, but the rise of computer-based redistrict teen, strangely enough, that the members of congress and state legislatures have created congressional seats in the house of representatives that are all democratic, all republican. there are relatively few swing seats. we seen a bunch of change in the past couple election, but that's very much the exception rather than the rule. members of the house of representatives fear primaries more than they fear general elections by and large unless they gravitate towards the margins of their parties. that doesn't explain the senate
because you can't redistrict the senate, but it has had enormous impact at the state and state legislature level in the more polarized politics we have. i also think the news media plays a role in this. they used to be that there was a kind of shared set of assumptions and news that everybody watched walter cronkite were hotly in brinkley and they sort of made up for, you can argue how successfully, but play things down the middle and that was true of newspapers as well. rupert murdoch brought fox news to the united states, which is based more on an english model, where and when everybody knows guardian as a laborer paper and fox news became a republican
channel and msnbc became a liberal channel. so you have people getting information that is as different as their political views and that contributes to some polarization. i think it's a great question. these are ideas, but i don't have a complete answer for you. >> do you have an idea of how chief justice roberts feels about citizens united? >> i know he voted for it. that's a pretty good tip off for it there. can i talk about this in "the oath." there is a key set of arizona about sort of a successor case. it was as big of a deal, the people ask of you going to cut back on citizens united? have embarrassed? are they worried? if you believe money is speech, that's one part incorporations for people part of it, but if you believe money is speech come
you pretty much have to deregulate american campaigns. any attempt to limit how much money you can give to him you can give money. if the court remains as currently configured, we are going to see more decisions deregulating, not less. we have this super packed commercial theocentric give $10 million to some entity that is not technically the new cambridge campaign. that section was disappeared by the next year or so novels invoke it directly to the campaign because i think that's where they're going. [inaudible] keep your hand up, man. yep, right there. >> essay question on the lighter side. wondering if you could tell us what you like to be a guest on morning joe.
[laughter] >> you know, this just kills me. i am an employee of cnn. i was on morning joe one. r. rating is so terrible that she can't ask me what it's like to be on cnn? [laughter] i know our ratings are not that good, but that's terrible. what an awful question. [laughter] used to get all the time, but it's andersen cooper really late? he's a great guy. what's it like on morning joe? it was fine. it was really nice. i've only been on once, this week i guess. i don't know. he seemed like nice people.
[inaudible] >> at evening. thank you for your presentation. chief justice rehnquist is in his 70s when he used were sent to pass his commerce cause. chief justice roberts has a lot younger now based in the taxation cause to pass legislation not in this case and health care costs. what do you envision in the future to push right-wing legislation? >> let me unpack that a little for those who might not be familiar with those terms. a couple cases at the end of rehnquist's tenure, where he did in fact use invalidated certain legislation based on the commerce clause. it was a crime to possess a gun within 50 feet of a school. they said that has nothing to do
with commerce and a lot of people thought i was going to be the leading managed is starting to invalidate. i don't want to get deep into the weeds here, the starting the court had basically deferred to congress and said if congress a connection, we're going to do for them the congress to that. i really don't think that the presidential importance of the national -- the federation of independent's committee upon the care cases all that great. i don't think they're going to suddenly start invalidating laws. i don't think the taxing power argument is going to be all that important. i guess having followed this stuff for a long time now, i'm getting pretty darn cynical. they follow it when they want to and they don't follow when they don't want to. i think what's really important about the upon the care case is
of palmatier had been upheld and 35 million people get insurance. 35 million people who wouldn't have gotten it. the other stuff is just conversation mostly. so that's what i think. >> lady in green, all the way back. and there's a gentleman in blue. >> by the way, i am going to be on hard ball said. i love another msnbc -- so bitter about that question. anyway, go ahead. [inaudible] >> could you comment on the health care decision to opt-out for medicaid? >> part of medicaid, yeah. >> our concern is that's going to have a devastating impact and i wondered where that fits in robert's decision in a few comments on it.
>> this is a part of the decision. has been a dark ring that says if congress cannot restates money on certain conditions like we will give the federal highway money, but you have to racetrack initiative on a one. the court said that was okay. in the obamacare case, they said that you have to expand the number of people who are eligible for medicaid, which is medicare, older people, medicaid is poor people. it was too coercive. the stakes were turning it over to create, so as a violation of states rights. medicaid -- not every state
adopted medicaid right away. arizona was the last in 1982. there is no medicaid in arizona until 1982. the people i know who know this issue best sale this governor's are talking big now. for going to turn this money. we don't want strings attached. but when they start wanting to balance their budgets and when they have hospitals and doctors coming to them, saying are you insane leaving billions of dollars on the table? states will come around, but they may not all come around to first. particularly after 2010 world these states are public and, it may be a somewhat slow process. >> i thought i would test your
powers one more time. you had a blog in "the new yorker" about the defense of marriage act in the way it will be reviewed. i've been interesting thing to bring up. >> it's really a fascinating moment but the supreme court on that issue because there are two issues, two kinds of cases at the same time in its okay relate to same-sex marriage, but the cases are quite different. what if they challenged the constitutionality of the defense of marriage act. as many of you know, defense of marriage act says the federal government will not recognize same-sex marriage under any circumstances, even if they are legal where they take place. this case that of massachusetts, very compelling case for two women are married, just as married as any heterosexual
couple. one of them died in under the internal revenue code, many passes tax rate from one spouse to the other. because the irs can't recognize same-sex marriage in massachusetts, the surviving spouse had to pay taxes on the money. so it's a very straight up challenge to that law. the other case heading to spring court is the a case out of california, this much more a challenge to that of the equal protection clause allows states to ban same-sex marriage. it is very much like loving v. virginia. are these states allow to be a same-sex marriage? potomac case, defense of marriage act case is a lot easier, legally and politically for the supreme court because it
only applies in states better to have same-sex marriage. they are not in the same same-sex marriage on other states. i actually think they'll take potomac case and declare it unconstitutional because it is really manifest the unjust. the government has a very hard time explaining why the government needs to do this. what interest is served by penalizing married couples who happen to be of the same that. the proposition 8 case is a much more dicey proposition because of the case goes up in his car form, and there a race they could merit, but it basically is massive 44 states that don't have same-sex marriage start allowing them. that would be politically
incendiary. imagine telling mississippi and alabama and texas company have to start performing same-sex marriages are in violation of the constitution. the justices are very aware of the political risk there. i think they will deny him the proposition 8 k. scum which means same-sex marriage would come to california. that would mean approximately 20 to 25% of the people in the country to live in states that have same-sex marriage. i don't think there is anyone who believes that number is going to start to shrink rather than grow. i'm not particularly knowledgeable about the pennsylvania state of the debate here, but i assume it's not going to happen anytime soon. but the states, illinois, it's a big